Wednesday, February 13, 2008

Sabam v. Tiscali (Scarlet) - English translation now available

The recent Belgian decision in SABAM v. Tiscali (Scarlet) appears to be the first time in Europe a court has considered whether ISPs can be required to monitor or filter the activities of their users in order to stop filesharing on peer to peer networks. The Cardozo Arts & Entertainment Law Journal has now provided an English translation of the decision. The decision deserves to be read in full, but here are some of the most important passages:

the issue of future potential encryption cannot today be an obstacle to injunctive measures since this one is currently and technically possible and capable of producing a result, as it is in the case before this court; that the internet sector is constantly evolving; that in crafting injunctive relief, the judge cannot consider speculations about potential future technical developments, especially if these might also be subject to parallel adaptations concerning blocking and filtering measures

the average cost of implementing these measures does not appear excessive; that, according to the expert, this estimated cost over a 3 year period (the time of amortization) and on the basis of the number of users on the order of 150,000 persons should not exceed 0.5 each month for each user

these measures could also have as secondary consequence to block certain authorized exchanges; that this circumstance that an injunctive measure affects a group of information [exchanges], of which some are not infringing (such as film, book, CD. . ..) does not prevent, nevertheless, it [the court] from enforcing the injunction

SA Scarlet Extended disputes, nonetheless, this court’s power to order an injunction by arguing that:* the technical measures requested would lead to impose upon it [Scarlet] a general monitoring obligation for the totality of all “peer-to-peer” traffic, which would constitute an on-going obligation contrary to the legislation on electronic commerce (Directive 2000/31 ...,* the installation of filtering measures may lead to the loss of the safe harbor from liability for mere conduit activities that technical intermediaries enjoy by virtue of Article 12 of Directive 2000/31,* the technical measures requested in so far as they lead to “installing in a permanent and systematic way listening devices” will violate fundamental rights and, in particular, the rights to privacy, confidentiality of correspondence, and freedom of expression;

Directive 2000/31 of 8 June 2000, related to certain legal aspects of information society services, and in particular electronic commerce in the internal market, states, in its Article15, that “. . .Member states shall not impose a general obligation on providers . . . to monitor the information which they transmit or store” ...Article 15, which is part of Section 4 of the Directive related to “Liability of intermediary service providers,” aims to prevent a national judge from imposing liability for breach by the service provider of a general monitoring obligation due only to the presence on its networks of illegal material ... this provision that thus governs the issue of provider liability is, however, exclusively addressed to the judge of liability and has no impact on the present litigation since injunctive relief does not require any prior finding of negligence by the intermediary

Scarlet wrongfully considers that this injunction would result in its loss of the safe harbor from liability contained in Article 12 of Directive 2000/31 ... that benefits a provider of mere conduit or access to the internet conditioned upon it neither selecting nor modifying the information being transmitted;

That in accordance with “whereas” clause 45 of Directive 2000/31, “the limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by court . . . requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it.”

That the only fact that the filtering technical instrument would not filter some infringing works belonging to the SABAM repertoire does not imply in any way that those works would have been selected by Scarlet; that indeed the fact that one does not succeed in blocking some content does not imply that this content has been selected by the intermediary as long as this intermediary does not target the information to be provided to his clients; the filtering measure is purely technical and automatic, the intermediary having no role in the filtering;

That, furthermore, even assuming that Scarlet would lose the benefit exemption of liability, it does not necessarily follow that it would be found liable; it would still have to be proven that it was negligent; that such litigation would nevertheless fall within the sole competence of a judge of liability;

filtering and blocking software applications do not as such process any personal information; that, like anti-virus or anti-spam software, they are simple technical instruments which today do not involve any activity implicating identification of internet user